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ED HOOD, EDWIN EARL HOOD, FRANK HOOD, RICKY SMITH and ARNOLD CARRAWAY v. STATE OF MISSISSIPPI

MARCH 16, 1988

ED HOOD, EDWIN EARL HOOD, FRANK HOOD, RICKY SMITH and ARNOLD CARRAWAY
v.
STATE OF MISSISSIPPI



EN BANC:

GRIFFIN, JUSTICE, FOR THE COURT:

The appellant, Ed Hood, a long-time supervisor in Copiah County, and the other appellants, were convicted of conspiracy to commit voter fraud through the illegal use of absentee ballots. We have thoroughly examined the record and studied the appellants' nine assignments of error, and find only two worthy of consideration, the use of outside influences on the grand jury. This assignment is meritorious, and requires reversal; also considered is a member of the grand jury serving on the petit jury. This was wrong.

The appellants received a fair and impartial trial before a learned and fair circuit judge and the verdict of the jury is supported by the evidence; however, the motion to quash the indictment because the grand jury was subjected to three distinct outside influences constitutes error. This Court has noted on several occasions that any citizen having a complaint against him is entitled to have a grand jury investigate the complaint when no one else is present other than the grand jurors, the sworn witnesses who are being examined, and the duly authorized prosecuting officer. This is fundamental. Sanders v. State, 198 Miss. 587, 22 So. 2d 500 (1945), where the Court went on to say:

 The rule is stated in 38 C.J.S. Grand Juries, 40, at page 1039, as follows:" It is generally held that in the absence of any imperative necessity therefor, the presence in the grand jury room at any time during the session of the grand jury of any person other than the witness undergoing examination, and the duly authorized prosecuting officer, is improper, "citing the case of State v. Owen, 156 Miss. 487, 126 So. 25, 28 and cases from other jurisdictions. In the Owen case our Court said, among other things, that" if the door of the grand jury room is open to righteous outside influences, this would be an entering wedge for the admission of corrupt outside influences. If the law and order league is permitted to enter, then sooner or later the league against law and order will find its way in. . . . There is only one safe,

 sound rule, and that is to close the door of the grand jury room tight against all outside influences. "

 22 So. 2d 501, 502.

 We have first focused on the proper rule and now relate the facts which clearly reveal that the rule was violated. In October, 1983, the United States District Court for the Southern District of Mississippi in Pendleton v. Hood, C.A. No. J84-0519 (B), a redistricting suit, ordered a special election for the offices of supervisors in Copiah County, Mississippi. Pursuant to the order of the federal court, a democratic primary was conducted in District No. 4, where W. E. Hood was the incumbent. Hood and Manuel Welch were the candidates. Hood was the victor in a very close race - 877 to 858 votes.

 Welch employed two attorneys - Carroll Rhodes and Jim Shannon - to represent him in contesting the election. A protest was filed before the County Democratic Executive Committee. This failed, and Shannon and Rhodes elected to forego an election contest under state law and filed an action alleging discriminatory acts under Section 2 of the Federal Voting Rights Act. Welch, et al. v. McKenzie, et al., C.A. J84-0030 (B), United States District Court for the Southern District of Mississippi. The federal court was requested to declare Welch the Democratic nominee or in the alternative to set aside the election and order a new one. The United States District Court, by Judge William H. Barbour, Jr., dismissed the action and the case was pending on appeal in the Fifth Circuit at the time of the indictment herein.

 Shannon and Rhodes, according to them, spent about one hundred hours investigating fraud by W. E. Hood, et al. in preparing Welch v. McKenzie, and among other activities formed a group called" Citizens for Better Government, "Shannon serving as attorney for the citizens group. This group used the news media to criticize the district attorney, at least the news media was invited to the meeting wherein the district attorney was criticized and accusations were made that the district attorney would prosecute some and not others and among those he would not prosecute were public officials in Copiah County, Mississippi.

 As a diligent and honest prosecutor would, the district attorney responded by stating that he would subpoena the members of the citizens group to the grand jury and invite all others with any information or proof of wrongdoing

 on the part of public officials to contact him. The district attorney did not subpoena Shannon or Rhodes but invited them to appear before the grand jury. The invitation was accepted. As a matter of fact, Shannon was the first witness to testify on the Hood matter, offering his testimony without having been interviewed by the district attorney or a determination made as to his personal knowledge of any misconduct. Among other things related to the grand jury by Shannon was a copy of Judge Barbour's opinion in Welch v. McKenzie, supra. Judge Barbour's opinion becomes important, and so that it might be better understood, we copy herein the significant portions of said opinion:

 It is not, of course, improper for a candidate to urge his supporters to utilize the absentee voting procedures where they are applicable, nor is it improper for a candidate to instruct his supporters as to how they may obtain and vote such ballots. It is clear that the Defendant, W. E. Hood, exerted considerable efforts in doing this. Of the 115 absentee ballots cast, Hood received 111 votes to Welch's 4 votes. This number of absentee ballots greatly exceeded the number of absentee ballots cast in any previous election in Copiah County. It is the method of obtaining these absentee ballots, of casting them and of counting them that must draw the attention of the Court.

 As stated above, there are two classes among those persons eligible to cast their ballot through the absentee process. The first class consists of those persons who are able to present themselves at the registrar's office and the second class consists of those persons who are either temporarily residing elsewhere or are physically incapacitated so that they cannot present themselves directly to the registrar. In practically every instance of the 115 absentee ballots cast in the second primary in the race for Supervisor of District 4 of Copiah County, the ballots were improperly obtained. The proof is clear that lists were prepared by supporters of W. E. Hood of those voters who desired absentee ballots. Those lists were presented to the registrar's office by one of three persons, Edwin Earl Hood, Arnold Carraway or Mildred Brent. Edwin Earl Hood is the son of W. E. Hood. Arnold Carraway

 is a county employee, working for the District of W. E. Hood. Mildred Brent is a county employee whose primary duties are the preparation of purchase orders at the request of W. E. Hood or the other county supervisors. In only few instances did the absentee voters present themselves direct to the registrar's office for the purpose of applying for and voting an absentee ballot. In no instance did any of those not presenting themselves directly to the registrar's office request an absentee ballot by mailing the proper application to the registrar's office.

 Upon presentation of the lists to the registrar's office, either of the two deputy registrars, as directed by registrar Mildred Ferguson, prepared an application for each of the names listed and marked the application showing the reason why such voter was eligible to vote by absentee ballot. This reason apparently had been placed on the list by whomever had prepared it.

 Upon completion of the application, the registrar or one of her deputies clipped the application to an absentee ballot and an absentee ballot envelope. At various times these" packets "were handed either singly or in groups numbering several to Arnold Carraway, Mildred Brent or Ricky Smith, another county employee working in the District of W. E. Hood. None of the absentee ballots were mailed to any voters.

 After receiving the packets, those persons then apparently distributed the packets to the various voters and W. E. Hood or his supporters had notaries public go to the houses of the voters. The notaries public were Mildred Brent, Richard Belding, another county employee, and Denise Strong. Apparently the procedure was for the notary to have the voter sign the Application and swear to it and then the notary would acknowledge the oath. On the same occasion the voter would mark his ballot, place it in the envelope, sign the affidavit contained on the envelope and have the notary acknowledge that affidavit. In a large number of instances the Certificate of Attesting

 Witness was not signed. The notary then returned the absentee ballot envelope with the ballot contained in it and the Application to the registrar's office rather than the voter returning it by mail as required. There is no proof that any of the voters were improperly influenced in the marking of their ballots.

 Accordingly, all but a few of the 115 absentee ballots cast were subject to challenge because of the failure to follow the proper procedures for obtaining and casting those ballots. In addition, 58 of the ballots were invalid for failure to have the Certificate of ...


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